Citation Nr: 9928731
Decision Date: 10/04/99 Archive Date: 10/15/99
DOCKET NO. 97-34 049 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to an increased (compensable) rating for right
ear hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Artur F. Korniluk, Associate Counsel
INTRODUCTION
The veteran had active service from January 1952 to January
1956.
This matter comes to the Board of Veterans' Appeals (Board)
from the Department of Veterans Affairs (VA) New Orleans
Regional Office (RO) August 1997 rating decision which denied
a compensable rating for the service-connected right ear
hearing loss.
REMAND
The Board finds that the veteran's claim is well grounded in
that it is capable of substantiation. Murphy v. Derwinski,
1 Vet. App. 78 (1990). This finding is based on his
assertion the service-connected right ear hearing loss has
increased in severity. Proscelle v. Derwinski, 1 Vet.
App. 629 (1992). If a claim is well grounded, VA has a duty
to assist the veteran in the development of facts pertinent
to his claim, see 38 U.S.C.A. § 5107(b), which includes a
thorough VA examination. Hyder v. Derwinski, 1 Vet. App. 221
(1991).
A review of the record reveals that the most recent VA
audiological examination was performed in February 1996, at
which time the veteran indicated that he had no complaints
referable to his ears (other than that he had to turn up the
TV volume a little bit and that his family was telling him to
get hearing aids). On examination, the average puretone
threshold level in the right ear was 21 decibels; speech
recognition using the Maryland CNC test was 94 percent
correct.
Medical records from T. Molony, M.D., reveal testing and
follow-up treatment associated with hearing loss in October
1996 and May 1997.
The Board notes that to rate disabilities arising out of
service-connected hearing loss, a mechanical application of
the rating schedule to the numeric values found on
audiological examination is used. Lendenmann v. Principi, 3
Vet. App. 345 (1992).
During a July 1999 Travel Board hearing, the veteran and his
spouse testified that his hearing acuity had deteriorated
since it was last examined by VA in February 1996.
Specifically, they testified that he had great difficulty
conversing with people in person and on the telephone, that
he was unable to hear unless he knew that people were talking
to him, and that he watched TV with the volume very high. He
testified that his hearing acuity was recently shown to have
deteriorated by 15 percent, compared to his acuity in
February 1996, and that he was issued hearing aids in June
1999. He stated that he had a hearing acuity evaluation and
received treatment for an ear infection at a VA facility in
July 1999.
Where the veteran claims that a disability is worse than when
originally rated, and the available evidence is inadequate to
evaluate the current state of the condition, VA must provide
a new examination. Olsen v. Principi, 3 Vet. App. 480, 482
(1992). In view of the fact that the veteran was last
examined by VA in February 1996, and he now claims an
increase in severity of his right ear hearing loss, the Board
is of the opinion that a thorough contemporaneous
audiological examination of that disability is warranted.
Green, 1 Vet. App. at 124.
Moreover, as indicated during his July 1999 hearing, the
veteran recently received treatment for his service-connected
hearing loss disability at the VA Medical Center (MC) in New
Orleans. Thus, all available outstanding VA treatment
records should be secured and associated with the veteran's
claims folder. Bell v. Derwinski, 2 Vet. App. 611 (1992)
(when VA is on notice of the existence and relevance of
evidence, it must obtain same prior to issuing a decision).
Finally, during the pendency of the veteran's appeal, the
rating criteria under which diseases of the ear and other
sense organs are rated was amended, effective June 10, 1999.
38 C.F.R. § 4.85 et seq. (see 64 Fed. Reg. 25,202-10). It is
apparent that the RO did not have an opportunity to evaluate
the claim pursuant to the newly-amended regulation, of which
the version most favorable to him must be applied. See
Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Thus,
further development of the medical evidence, to comply with
the recently amended criteria, is required.
In view of the foregoing and to ensure full compliance with
due process requirements, this case is REMANDED for the
following development:
1. The RO should obtain from the
veteran the names, addresses and
approximate dates of treatment of all
medical care providers who treated him
for his service-connected hearing loss
since February 1996. After any
necessary authorizations are obtained
from the veteran, copies of all relevant
VA or private reports of treatment (not
already of record) should be obtained by
the RO and incorporated into the claims
folder, particularly all outstanding
records from the New Orleans VAMC.
2. The veteran should then be afforded
a VA audiological examination to
determine the extent and severity of his
service-connected right ear hearing
loss. The examination report should
include a description of the findings
and associated functional impairment.
The claims folder and the information
necessary for the examiner to make
findings concerning the rating of the
veteran's service-connected hearing loss
in accordance with the criteria
effective June 10, 1999 (38 C.F.R.
§ 4.85 et seq.) must be provided the
examiner for review in conjunction with
the examination.
3. The RO should then review the
veteran's claim for increased rating for
right ear hearing loss in accord with
new criteria referable to diseases of
the ear and other sense organs,
38 C.F.R. § 4.85 et seq., applying the
criteria most favorable to the veteran.
Karnas, 1 Vet. App. at 312-13.
4. The RO should again review the
record, and specifically document
consideration of 38 C.F.R.
§ 3.321(b)(1). See Floyd v. Brown,
9 Vet. App. 88 (1996) (the Board is
precluded from assigning an
extraschedular rating in the first
instance).
5. The RO should carefully review the
examination report and the other
development requested above to ensure
compliance with this remand. If any
development requested above has not been
furnished, including any findings on
examination, remedial action should be
undertaken. See Stegall v. West,
11 Vet. App. 268 (1998).
If the benefit sought on appeal is not granted, the veteran
and his representative should be provided a supplemental
statement of the case and afforded an opportunity to respond.
The case should then be returned to the Board for further
appellate review. The veteran has the right to submit
additional evidence and argument on the matter remanded to
the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
J. F. Gough
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).